Rollback of Water Protections Spurs Challenge by 9 States

(CHRIS MARSHALL, Courthouse News Service)

BALTIMORE (CN) — Nine attorney generals fired back against the Trump administration for trying to roll back water protections 40 years in the making.

Lead by the top lawyers for New York and California, each of the officials who signed Wednesday’s letter to the heads of the Environmental Protection Agency and the U.S. Army Corps of Engineers represents a state that sits either on or near federally regulated bodies of water, from the Atlantic and Pacific Oceans to several of the Great Lakes.

They note that the 2015 Clean Water Rule that is slated for early retirement was adopted to replace standards that had not been updated since 1977 and had caused decades of inconsistent interpretations across the country.

Though the new rule has been on hold pending resolution of legal challenges — indeed a consolidated petition is set to go before the Supreme Court for oral argument on Oct. 11 — the EPA and Corps would cut that review off at the head and repromulgate the 1977 standards.

In their letter, the states warn that doing so “would not only make water quality protection harder for the states, but would put them at an economic disadvantage in competition with other states.”

“This would promote a ‘race to the bottom’ in which states compete with each other by eliminating pollution controls, a situation which the CWA was intended to prevent,” the 17-page letter states.

Casting the repeal rule as arbitrary and capricious, the state attorney generals say the government offered no analysis for its actions, disregarded prior factual findings and denied interested parties a meaningful opportunity to comment.

“There is no doubt that repromulgating the 1977 regulations will perpetuate the confusion and inconsistencies that have long-plagued CWA jurisdictional determinations,” the letter states.

Another section of the letter emphasizes the robust research that regulators conducted under President Barack Obama before making the finding that intermittent streams and floodplains should be defined as “waters of the United States.”

Reviewing more than 1,200 peer-reviewed publications and an independent review from the EPA’s Science Advisory Board, “the agencies found strong scientific evidence that wetlands and open waters in floodplains significantly impact the chemical, physical and biological integrity of primary waters,” according to the letter.

Much of the research about the inadequacies of the 1977 regulations also go ignored in the repeal effort, the states warn.

“They have not explained, nor can they, how their prior findings of dysfunction in the 1977 regulations square with the rationale they have articulated for the re-promulgation of those rules: that they would prevent ‘inconsistencies, uncertainty, and confusion’ if the Supreme Court dissolved the Sixth Circuit’s nationwide stay of the Clean Water Rule,” the letter states.

Wednesday’s letter closes with a challenge to the intimate involvement of EPA Administrator Scott Pruitt in the repeal effort.

“For two years before becoming EPA administrator, as Oklahoma attorney general, he and other state attorneys general challenged the Clean Water Rule on behalf of their states in the U.S. Court of Appeals for the Sixth Circuit and in other federal courts, claiming that it exceeded the agencies’ statutory and constitutional authority,” the letter states.

Since the repeal involves the very same issue he challenged, and seeks to effect the very same litigation, the states say Pruitt’s involvement is a clear conflict.

“In summary, Administrator Pruitt’s involvement in this rulemaking renders a final rule invalid due to his illegal refusal to follow recusal procedures … in light of his lack of impartiality, and because the clear and convincing evidence demonstrates his closed mind on the matter in violation of due process,” the letter states.

The letter is signed by the attorneys general of New York, California, Maine, Maryland, Massachusetts, Oregon, Vermont, Washington, and the District of Columbia.

“The Trump administration’s attempt to repeal the Clean Water Rule would turn back the clock on hard-earned gains and jeopardize access to the clean, safe water on which we rely,” New York Attorney General Eric Schneiderman said in a statement. “Attorneys general will continue to fight back against the Trump administration’s reckless assault on our nation’s core public health and environmental protections.” 

Maryland AG Brian Frosh meanwhile predicted that a revival of the 1977 rules would “set back years of progress in restoring the Chesapeake Bay.”

With a 64,000 square mile watershed covering six states and the District of Columbia, Frosh notes that gambling with Chesapeake Bay, the nation’s largest estuary, is a risk regulators should not take lightly.

Downstream waters like the Chesapeake are vulnerable to flooding, pollution and other problems, Frosh warned, if the rulings adopted in response to inconsistencies of the old regulations caused millions of acres of wetlands and 60 percent of America’s streams to lose their federal protections.

Maryland says the new rule “has a science-based definition that is essential for states to avoid having to deal with pollution that may be coming downstream from neighboring states.”

Before the last administration removed inconsistencies with the 2005 rule, according to Frosh’s statement, “roughly 20,000,000 wetland acres and 2,000,000 miles of streams in the Continental United States lost, or were placed in jeopardy of losing, their protections under the Clean Water Act.”

“These at-risk streams help provide drinking water to 117 million Americans,” the statement continued.

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